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Monday, February 26, 2018

service matter= All these eleven persons, who were engaged by one K.D.S. College (respondent No.8 in these proceedings) situate within the jurisdiction of P.S. Gogari, District Khagaria, Bihar, wanted regularisation of their services and payment of salary based on such regularisation.=The crucial question is if their initial appointment by the Managing Committee was in consonance with Article 14 of the Constitution of India by open advertisement and competitive merit selection. On account of various interpretations by more than one Bench of M.L. Kesari (supra) reference was made to the Full Bench. We have already noticed from the order refusing regularization dated 13.08.2003 that the appointment of the Appellants on daily wage was not in consonance with the law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2356 OF 2018
UPENDRA SINGH .....APPELLANT(S)
VERSUS
STATE OF BIHAR AND OTHERS .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The appellant herein has challenged the judgment dated
July 25, 2013 passed by the High Court of Judicature at Patna
dismissing the Letters Patent Appeal (LPA) filed by the appellant.
In fact, by the said common judgment, two LPAs are decided.
One LPA was filed by three persons and the other was filed by
eight persons. All these eleven persons, who were engaged byone K.D.S. College (respondent No.8 in these proceedings)situate within the jurisdiction of P.S. Gogari, District Khagaria,
Civil Appeal No. 2356 of 2018 Page 1 of 11Bihar,wanted regularisation of their services and payment ofsalary based on such regularisation. Their writ petition wasdismissed by the learned Single Judge and the intra-court appealhas met the same fate. However, it appears that out of eleven
persons, who were the appellants in the aforesaid two LPAs, only
the appellant herein has approached this Court feeling
dissatisfied with the outcome therein.
2) The main case set up by the appellant is that, no doubt,
respondent No.8 was a private college when the appellant was
engaged, however, it was ultimately taken over by the State
Government and got affiliated to the Bihar University. It is stated
that having regard to the long service rendered by the appellant,
coupled with the decision of the University authorities itself to
regularise such persons, he was also entitled thereto. However,
the same is denied and he has not been paid his regular salary
for last over a decade. The claim is founded on the following
averments:
3) The Governing Body of respondent No.8 constituted a Selection
Committee for appointment of teaching and non-teaching staff
and this Committee, after following due process of recruitment
through an advertisement and thereafter selection on interview,
Civil Appeal No. 2356 of 2018 Page 2 of 11
appointed the appellant in Grade III in non-teaching category with
effect from January 24, 1978. In the year 1980, a decision was
taken by the Government of Bihar to some Universities, including
the Bihar University, that the colleges affiliated with these
Universities be converted as ‘Constituent Colleges’ of the
University on the basis of which respondent No.8 also became a
Constituent College of the Bihar University. This decision was
implemented by respondent No.8 as well and with effect from
June 16, 1981, respondent No.8 attained the status of
Constituent College. Thereupon, respondent No.8 absorbed all
the employees, including the appellant, and the appellant
continued in service of respondent No.8 thereafter. However, as
the University authorities did not make payment of salaries to the
appellant and some other employees of Grade III and Grade IV,
although they were continued in service, representations were
made in this behalf by the College Employees’ Federation.
Though, initially assurances were given, they were not fulfilled,
because of which the Employees’ Federation started the agitation
and continued the same. Ultimately, State of Bihar and Bihar
Higher Education Department entered into an agreement dated
April 26, 1989 with the Bihar State University and the College
Employees’ Federation agreeing to absorb the employees,
Civil Appeal No. 2356 of 2018 Page 3 of 11
including the appellant, on the basis of Staffing Pattern. Based
on that decision, respondent No.8 scrutinised the records of its
employees and recommended the names of non-teaching staff,
including that of the appellant, through its letter dated December
22, 1989 to the Government recommending the names for
absorption. All such names were considered by a three man
Staffing Committee appointed by the University, which inspected
the records, however, no final decision was taken. In these
circumstances, when the matter was getting delayed, the
appellant and others filed writ petition in the High Court in the
year 1997, which was disposed of on May 05, 1999 directing the
State Government to take appropriate decision as early as
possible. Thereafter, the matter was considered and ultimately
the Bihar University issued orders dated August 30, 1999/
September 15, 1999 rejecting the claims of these employees,
including the appellant, and directing them not to work in the
College. This action was challenged by filing writ petitions, which
were allowed and the appellant and some others were taken back
in the employment. However, they were not paid salary of the
regular staff. Thereafter also, few rounds of litigation took place
when the writ petitions were filed in which orders were passed by
the High Court to consider the claim of these persons and it is not
Civil Appeal No. 2356 of 2018 Page 4 of 11
necessary to give those details. Suffice is to state that there was
an issue as to whether there were sanctioned posts or not against
which the cases of these persons could be considered.
According to the appellant, respondent No.8 informed the
University, vide letter dated June 11, 2009, that there are twenty
five posts sanctioned for the College, out of which fifteen posts
were for Grade IV employees and ten for Grade III employees. In
spite thereof, no decision was taken and ultimately Writ Petition
No. 16667 of 2010 was filed by the appellant and some other
employees, which was dismissed by the Single Judge of the High
Court on February 01, 2013. It is against this judgment, LPAs in
question were filed, which have been dismissed by the impugned
judgment.
4) The case set up by the appellant, in nutshell, is that the appellant
has been working for more than two decades; he was appointed
by respondent No.8 after following due process of recruitment;
the appointment was against sanctioned post; after respondent
No.8 college attained the status of ‘Constituent College’, the
University refused to pay the salary of the regular staff; and
though decision was taken to regularise the services on the basis
of Staffing Pattern as far back as on May 10, 1991 by a resolution
Civil Appeal No. 2356 of 2018 Page 5 of 11
of the State Government in this behalf, benefit thereof is not
extended to the appellant even when he fulfils all the conditions
contained in the said resolution.
5) Learned counsel for the appellant submitted that the writ court as
well as the appeal court have proceeded on a wholly erroneous
basis and assumption that the Government had, at no stage,
agreed to regularise the appellant and others. She submitted that
the State Government had already given concurrence for such a
regularisation but was delaying its implementation on one pretext
or the other. This concurrence of the State Government was
recorded in the agreement dated April 26, 1989 with the
University and the College Employees’ Federation, which was
followed by various other documents exchanged between the
University, the State Government and respondent No.8. It was
also argued that the High Court wrongly proceeded on the basis
that the appellant was appointed after the cut off date of July 12,
1980, whereas the record reveals that he was appointed much
prior thereto, i.e. on January 24, 1978.
6) Learned counsel for the respondent, on the other hand, justified
the reasoning adopted by the courts below and argued that the
case of the appellant was not covered by the resolution passed
Civil Appeal No. 2356 of 2018 Page 6 of 11
on Staffing Pattern, inasmuch as, neither there were sanctioned
posts when the appellant was appointed nor any such post
existed thereafter, nor was he appointed against sanctioned post
or after following the due procedure. He submitted that the
appointment of the appellant or similarly situated persons was
done by respondent No.8 of its own and when respondent No.8
became Constituent College, the University was well within its
right not to regularise those persons who were not appointed
against the sanctioned post. The learned counsel referred to
clause (1) of the Manual of Bihar University Laws (Part – I) which
deals with the appointment and powers of the Vice Chancellor
and sub-clause (6) thereof stipulates that it is the Vice Chancellor
which has the power to make appointment to the post within the
sanctioned grades and scales of pay and within the sanctioned
strength of the ministerial staff etc., meaning thereby not only
power is given to the Vice Chancellor but even he can appoint
only against the posts, that too within the sanctioned grades.
7) After considering the respective arguments, we are of the view
that the impugned judgment is without any blemish and no
interference is called for. In fact, whole premise on which the
case is founded by the appellant seems to be incorrect. We note
Civil Appeal No. 2356 of 2018 Page 7 of 11
that the cases of these persons, including the appellant, were
duly considered by the University, on the basis of which order
dated August 13, 2003 were passed refusing regularisation. This
order specifically states that the initial appointment of the
appellant and others was not in accordance with law. It was
made without advertisement and there was no recommendation
of panel by the Selection Committee. So much so, the
appointments were not made by the competent authority. We find
that the University, or for that matter, the Government had agreed
to regularise the services of those employees of the colleges,
which had become the Constituent Colleges, only on the
condition that their initial appointment was after following the due
procedure and that too against the sanctioned post. A statement
was made at the Bar by learned counsel for the respondent that
there were no sanctioned posts even now.
8) Law pertaining to regularisation has now been authoritatively
determined by a Constitution Bench judgment of this Court in
Secretary, State of Karnataka & Ors. v. Umadevi & Ors.,
(2006) 4 SCC 1. On the application of law laid down in that case,
it is clear that the question of regularisation of daily wager
appointed contrary to law does not arise. This ratio of the
Civil Appeal No. 2356 of 2018 Page 8 of 11
judgment could not be disputed by the learned counsel for the
appellant as well. That is why she continued to plead that the
appointment of the appellant was made after following due
procedure and in accordance with law. However, that is not
borne from the records. Pertinently, order dated August 13, 2003,
vide which the appellant was refused regularisation on the
aforesaid ground was not even assailed by the appellant at that
time. It may be mentioned that in Uma Devi, the Court left asmall window opened for those who were working on ad hoc/daily wage basis for more than ten years, to regularise them as aone-time measure. However, that was also subject to thecondition that they should have been appointed in dulysanctioned post. Further, while counting their ten years period,those cases were to be excluded where such persons continuedto work under the cover of orders of the courts or the tribunal.
The High Court has, in the impugned judgment, discussed these
nuances and has also referred to the judgment in Uma Devi and
held that the benefit of one-time measure suggested in that case
could not be extended to the appellant because of the following
reasons:
“The Appellants clearly fall in the exception noticed in
paragraph-53 of Umadevi (supra) as their claims were
sub judice on the date the pronouncement of the
Constitution Bench was made in view of pendency of
Civil Appeal No. 2356 of 2018 Page 9 of 11
C.W.J.C. No. 12235 of 2005 disposed subsequently
on 29.08.2006. Such litigious continuation in
employment stands excluded from the directions of
Umadevi.
The Appellants claim to have been regularized
within the staffing pattern. In our opinion, it is not the
crux of the matter. The crucial question is if their initialappointment by the Managing Committee was inconsonance with Article 14 of the Constitution of Indiaby open advertisement and competitive meritselection. On account of various interpretations by
more than one Bench of M.L. Kesari (supra) reference
was made to the Full Bench. We have already noticedfrom the order refusing regularization dated13.08.2003 that the appointment of the Appellants ondaily wage was not in consonance with the law.
The conclusion in Ram Sewak Yadav (supra) at
paragraph 43 is as follows:
“43 (A) Uma Devi (supra) prohibits
regularization of daily wage, casual, ad-hoc, and
temporary appointments, the period of service
being irrelevant;
(B) An illegal appointment void ab initio made
contrary to the mandate of Article 14 without
open competitive selection cannot be
regularized under any circumstances.
(C) Irregular appointments can be regularized if
the appointment was made by an authority
competent to do so, it was made on a vacant
sanctioned post, in accordance with Article 14 of
the Constitution with equal opportunity for
participation to others eligible by competitive
selection and the candidate possessed the
eligibility qualifications for a regular appointment
to the post.
(D) The appointment must not have been an
individual favour doled out to the appointee
alone and he person must have continued in
service for over ten years without intervention of
any court orders.”
Civil Appeal No. 2356 of 2018 Page 10 of 11
9) We are, thus, of the view that there is no merit in this appeal,
which is accordingly dismissed.
No costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
FEBRUARY 23, 2018.
Civil Appeal No. 2356 of 2018 Page 11 of 11